U.S. Department of Justice Guidance on Racial Profiling

In 2001, President George W. Bush pledged to end racial profiling in America. Following that pledge, in 2003, the U.S. Department of Justice issued its Guidance Regarding the Use of Race by Federal Law Enforcement Agencies. The Guidance purported to ban racial and ethnic profiling, but contained exceptions for border security and national security and failed to include profiling based on religion or national origin. In 2009, Attorney General Eric Holder pledged to review and revise the Guidance. Muslim Advocates and a diverse group of civil rights, faith and civic organizations urge the Attorney General to fulfill his commitment to modify the Guidance and ensure equal treatment under the law by federal law enforcement agencies. Muslim Advocates provides this resource page to summarize the history of this issue and why the changes are needed urgently.

Notable Events in the History of the DOJ Guidance on Use of Race by Federal Law Enforcement Agencies

June 1999 — Professor David Harris and the ACLU issue the reportDriving While Black, which examines racial profiling on American highways and finds a clear pattern of racial discrimination in traffic stops and searches by law enforcement.

June 2001 — Senator Russ Feingold (D-WI) and Representative John Conyers (D-MI) introduce the End Racial Profiling Act of 2001 in Congress. Despite early indications of bipartisan support, the bill later stalls in committee following the September 11, 2001 attacks. Rep. Conyers and other sponsors continue to introduce the bill and push for its passage

February 2002 — Attorney General John Ashcroft says, “This administration… has been opposed to racial profiling and has done more to indicate its opposition than ever in history. The President said it’s wrong and we’ll end it in America, and I subscribe to that. Using race… as a proxy for potential criminal behavior is unconstitutional, and it undermines law enforcement by undermining the confidence that people can have in law enforcement.”

Early 2003 — The Leadership Conference on Civil and Human Rights (LCCHR) issues the report Wrong Then, Wrong Now, which notes that the general sentiment on the need to end racial profiling—as articulated by President Bush and Attorney General Ashcroft—disappeared in the wake of the September 11, 2001 attacks. The report states that traditional racial profiling by law enforcement on the streets and “anti-terror” profiling against those of Arab, South Asian, or Middle Eastern descent, including those who might be identified or misidentified as Muslim or Sikh, must end.

June 2003 — The Department of Justice issues its Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, which states that “Federal law enforcement officers may not use race or ethnicity to any degree, except that officers may rely on race and ethnicity in a specific suspect description. This prohibition applies even where the use of race or ethnicity might otherwise be lawful.” The prohibition, however, includes exceptions for matters of border and national security, and fails to prohibit profiling on the basis of religion, national origin, gender, or sexual orientation.

November 2009 — Attorney General Eric Holder expresses his concern about racial profiling and acknowledges that he has initiated an internal review of the Department’s Guidance.

May 2010 — Several community and civil rights organizations, including Muslim Advocates, the ACLU, LCCR, Rights Working Group, the Sikh Coalition, the American‐Arab Anti‐Discrimination Committee, and the Center for National Security Studies, meet with senior Justice Department officials and members of the Attorney General’s Working Group on Racial Profiling Guidance.

June 2010 — Attorney General Eric Holder vows to review the Guidance during a speech at the American-Arab Anti-Discrimination Committee’s 30th Anniversary National Convention, saying, “I’m committed to ensuring that department policy allows us to perform our core law enforcement and national security responsibilities with legitimacy, accountability and transparency. That’s why, last fall, I initiated an internal review to evaluate the 2003 Guidance and to recommend any changes that may be warranted. But, today, I want to be clear about something: Racial profiling is wrong. It can leave a lasting scar on communities and individuals. And it is, quite simply, bad policing—whatever city, whatever state.”

June 2010 — Along with Hillary Shelton of the NAACP, Amardeep Singh of the Sikh Coalition, and others, Muslim Advocates Executive Director Farhana Khera testifies before the U.S. House Judiciary Committee on a panel addressing “Racial Profiling and the Use of Suspect Classifications in Law Enforcement Policy.” Ms. Khera details the harmful effect of profiling by the FBI and Customs and Border Protection (CBP) on American Muslim communities. Noting the limitations of the Guidance, Ms. Khera also calls on Congress to enact legislation banning law enforcement from profiling on the basis of religion and national origin.

July 2010 — The groups participating in the May 2010 meeting write to members of the Attorney General’s Working Group to call for revisions to the Guidance. The letter calls for the prohibition of profiling on the basis of religion and national origin, and the removal of border and national security exceptions.

March 2011 — LCCHR releases an update to Wrong Then, Wrong Now, called Restoring a National Consensus: The Need to End Racial Profiling in America, which details the expansion of counter-terrorism and immigration-related profiling by law enforcement. The report makes several recommendations, including revision of the Guidance to include a prohibition on profiling on the basis of religion and nation origin and the elimination of border and national security exceptions.

October 2011 — Muslim Advocates releases its report on the 10-year anniversary of the USA PATRIOT Act, titled Losing Liberty, and describes the American Muslim experience with discriminatory policing practices. The report reiterates a call for the Guidance to be modified.

April 2012 — A bipartisan group of sixty-eight members of Congress write to Attorney General Holder to request that the Guidance be revised to include prohibitions on profiling “on the basis of national origin and religion” and that the ban on profiling for traditional law enforcement activities be extended to cover “national security and border security investigations.”

May 2012 — Over 200 civil rights and community organizations, including Muslim Advocates, write to Attorney General Eric Holder asking that the Guidance be amended to include prohibitions on profiling based on religion and national origin. The letter further requests that loopholes for national security be closed; the Guidance be made applicable to state and local law enforcement that partner with the Federal government; the Guidance be extended to surveillance activities; and the Guidance include an enforcement mechanism.

August 2012 — The American Bar Association’s House of Delegates vote to extend its 2008 Policy on Racial and Ethnic Profiling to include a prohibition on profiling based on religion. The ABA cites the pervasive profiling of Muslims by the FBI and CBP and notes the NYPD’s surveillance operation on the New York area Muslim population.

June 2014 — Congressional leaders call on the Obama Administration to issue improved profiling guidance for federal law enforcement that closes current loopholes.

August 2014 — In the wake of ongoing tragedies in Ferguson, Missouri, over 100 civil rights and community organizations demand federal action to prevent discriminatory profiling.